Religious Schools v. Children's Rights.

The end may at last be in sight for the long-running establishment clause battle over state aid to families who send their children to religious schools. Earlier this year, in Jackson v. Benson, the Wisconsin Supreme Court held that the Establishment Clause permits states to provide parents of school-age children with tuition vouchers redeemable at the private school of their choice--even if that school provides a religious education.(3) Although the Supreme Court has denied certiorari in Jackson,(4) the fact that similar cases are pending in three other states suggests that the Court will probably issue a definitive ruling on the constitutionality of vouchers sometime within the next few years.(5)

The constitutional controversy over vouchers is not simply a referendum on whether religious schools are good or bad. The conflicting interests of taxpayers, teachers, subgroups of differently situated parents, and other groups play a large part, as do principled disagreements about how best to interpret the Establishment Clause. Clearly, however, the ways in which people understand both their own interests and the meaning of the Establishment Clause are very much influenced by their divergent judgments about the merits of religious schools compared with secular public ones. As voucher proponents see it, religious schools (unfettered by the Establishment Clause) are better at providing much-needed moral and character education, and the low-cost exit option vouchers give parents will force public schools to become better, safer, and less wasteful. In contrast, voucher opponents worry that vouchers will result in the flight of education-conscious families from public schools and lead to the proliferation of divisively sectarian religious schools. Despite their reservations about a system in which religious schooling is the norm rather than the exception, however, mainstream opponents of vouchers accept--or at least do not explicitly question--the legitimacy and constitutionality of parentally-chosen religious schooling as it now exists throughout the United States. None of the major groups in the anti-voucher coalition calls for the abolition of parents' constitutional rights to decide whether and what kind of religious education their children shall receive. And although thoughtful observers continue to debate whether our ongoing educational crisis is essentially confined to low-income, inner-city public schools, or also includes more affluent suburban and rural school districts, it has not occurred to anyone to suggest that the real crisis lies in the religious schools that educate the overwhelming majority of children who attend nonpublic schools.

Until now. In the eyes of James G. Dwyer, conservative religious schools compose a vast Gulag peopled by children unfortunate enough to be born into traditionalist religious families.(6) It is high time, he argues in Religious Schools v. Children's Rights, that we deploy the force of law to prevent religious parents from robbing their children of the high-quality secular education that citizenship in our society entitles them to.(7) Indeed, Dwyer claims that the Constitution requires states to intervene to protect children from the harmful practices of traditionalist religious schools (and parents). He contends, among other things, (1) that parental childrearing rights are illegitimate and should be abolished, (2) that states must regulate childrearing solely by reference to what is in children's best interests, (3) that the Establishment Clause requires states to determine children's best interests by focusing exclusively on their temporal interests, (4) that states must therefore forbid parents to make religiouslybased childrearing decisions that run counter to their children's temporal interests, (5) that the Equal Protection Clause requires states to apply all child-welfare legislation to every child, regardless of the religious beliefs of the child or the child's parents, (6) that all state education regulation that seeks to advance children's best interests must therefore be applied to religious schools, (7) that the practices of conservative religious schools (and parents) are harmful to children's temporal interests in a variety of important ways, and (8) that the Constitution therefore requires states to intervene to dismantle these practices. Specifically, religious schools should be forbidden to employ uncertified teachers, to use corporal punishment, to teach that premarital sex is categorically wrong, to espouse traditional gender roles or other "sexist teaching," to teach secular subjects from a religious perspective, to disparage persons of other faiths, and to teach children that they will be "saved" only if they conform to "unreasonable" religious standards of conduct.(8)

Dwyer recognizes that these proposals would "so radically alter" the nature of religious schools "as to make them unrecognizable."(9) But he declares this to be "cause for celebration, because any form of schooling that systematically violates the rights of children should not exist."(10) Moreover, he suggests that there is a silver lining for religious schools: provided they abide by his prescriptions, they can continue to offer religious instruction and ceremonies--so long as these are truly optional.(11) Best of all, once religious schools have been suitably purged of all "practices inconsistent with the temporal well-being of their students, the state should be free to let public funds be used to pay for children to attend these schools."(12) Thus, provided the state forces religious schools to conform to its judgments about children's temporal best interests, vouchers for religious education (that is, what's left of it) are perfectly constitutional!

Now, whatever the Supreme Court ultimately decides to do about vouchers, we can be quite sure it will not lift this page from Dwyer's radical playbook. Dwyer--who pulls no punches in his criticisms of the Court's childrearing jurisprudence--knows this full well. In making the case for his various revolutionary proposals, he is pursuing a long-run strategy, seeking to persuade an academic audience that will in turn influence the rising generation of lawyers, judges--and law clerks. To that end, he has written a forceful, spirited, and creatively argued book that deserves serious and rigorous evaluation.

Moreover, at least within the academy, Dwyer's cause is by no means a hopeless one. His theses will strike a receptive chord with law professors, many of whom are deeply suspicious of religious conservatives (and very few of whom actually are religious conservatives).(13) Law professors commonly think that religious traditionalists are either outright hostile to fundamental liberal values such as the rule of law, democratic governance, and civil and political equality, or grudgingly profess allegiance to them for prudential reasons. The widespread belief in legal academic circles about religious traditionalists roughly parallels what political conservatives have long said about Communists: these people will take advantage of liberal democratic freedoms until they come to power, and then they will commence the elimination of those freedoms. Moreover, many law professors see religious traditionalists--especially Christian Fundamentalists--as extremists whose beliefs and practices are irrational, without value, and positively dangerous to themselves and others. The dispositions these opinions induce are not limited to preventing religious traditionalists from gaining government power; they also include using government power to counter and undermine religious traditionalism as a movement. The gist of this sentiment is, "Why tolerate the intolerant?" In a sense, therefore, Dwyer is simply saying explicitly, and attempting to provide a theoretical foundation for, what many academics (and other intellectuals) have long felt about `the Religious Right.'

Yet a strong countervailing tendency is also evident in much liberal thinking. The principle that government should be tolerant and neutral in its treatment of competing reasonable conceptions of the good life--and slow to conclude that a widelypracticed way of life is unreasonable--has led many scholars, including the influential political and legal philosopher John Rawls, to seek ways of accomodating and tolerating religious traditionalists in matters of childrearing.(14) Even Amy Gutmann, who advocates a strong conception of democratic education that clashes with conservative religious education on many issues, is prepared to recognize a large realm within which religious schools and parents are free to instruct children in accord with their religious values and beliefs.(15) Similarly, while there is plenty of controversy among constitutional scholars about the scope of parents' constitutional rights to control the religious education of their children, it is safe to say that the core holdings of the Court's leading parental-rights cases--Pierce v. Society of Sisters(16) and Wisconsin v. Yoder(17)--still enjoy widespread support among constitutional scholars.

Dwyer argues that this liberal tendency to favor pluralism and toleration, whatever its merits as applied to the selfregarding behavior of religious adults, has no proper application to decisions by religious parents concerning their children's lives: "the value of toleration is simply irrelevant, in the context of children's education."(18) In his view, Rawls and other liberals have fallen into the same fundamental error that infects the Supreme Court's childrearing decisions: failing to see children as distinct persons whose interests are entitled to equal weight with those of adults.(19) By exploring the implications of recognizing children's best interests as the proper foundation for regulation of...